There is a disturbing legal trend in recent years that is undercutting our judicial system and blatantly favoring religious litigants. In order to rule for Christian plaintiffs, judges are ignoring major jurisdictional defects in their cases. I would like to explore some of those cases and share one upcoming case that is likely to continue the trend.
Who can sue?
At the outset, it is important to understand that our federal courts have limited jurisdiction. In order for someone to bring a lawsuit in federal court, the U.S. Constitution requires that there must be an actual “case or controversy.”
Sometimes federal courts cannot hear a case because the plaintiff has not shown that they have suffered any injury or that they will suffer a future injury. You may have heard this talked about in the context of a plaintiff lacking “standing.”
Sometimes courts lose the ability to hear a case because the plaintiff is no longer in a position to litigate it and the case becomes “moot.” This has happened in various state/church lawsuits, as, for example, when a student graduates high school and therefore the student can no longer maintain most legal claims against their former school.
Sometimes courts decide that they are unable to hear a case because it is not yet “ripe.” That is, the plaintiff sued too early before the facts and issues in the case could be fully developed.
These descriptions are generalities, but should help set the stage for understanding how courts are bending the rules to benefit Christian plaintiffs.
Supreme Court gamesmanship
For instance, the Supreme Court recently ruled in favor of a Christian website designer who claimed that Colorado’s Anti-Discrimination Act violated her free speech rights. As FFRF argued in an amicus brief, the case was manufactured from the outset. The owner had never actually created wedding websites, never received a request to create a same-sex wedding website, and had never been subject to state enforcement action. In order to have her case heard, she should have had the obligation to show that she was under the threat of imminent enforcement under the law. Yet the Supreme Court sidestepped the “case or controversy” problems in the case in order to rule in her favor.
And last summer, the Supreme Court ruled for a Christian football coach who wanted to pray on the field as part of his public high school coaching position. As FFRF pointed out, the coach stealthily sold his home, left the state of Washington, and moved 2,800 miles away to Florida where he bought a home that became his legal domicile. The case had become moot upon his moving.
I can confidently say that any public school employee or student seeking to enforce an Establishment Clause claim under similar circumstances would have had their case dismissed. Of course, the Supreme Court not only accepted this moot case, but issued an opinion in the coach’s favor.
Judges are using their imagination in abortion pill case
Taking their lead from the Supreme Court, lower federal courts are engaging in the same charade.
One recent case that has garnered a lot of national attention is a case in Texas over the FDA’s approval (23 years ago) of the drug mifepristone for abortion care through seven weeks gestation. Earlier this year, an anti-abortion judge, Matthew Kacsmaryk, issued a preliminary injunction undoing the FDA’s approval. Kacsmaryk’s opinion has been widely criticized, especially his distorted reading of the 1873 Comstock Act. The case was brought by Alliance Defending Freedom (ADF) on behalf of doctors who oppose abortion.
On appeal, a 5th U.S. Circuit Court of Appeals panel agreed with the idea that a group of doctors who oppose abortion could sue over the FDA’s prior approval because the FDA had amended the approval in 2016 (providing for use through 10 weeks gestation and other changes). Thankfully, the U.S. Supreme Court subsequently granted a stay of the injunction while the case works its way through the courts. On April 21, the Supreme Court issued an order that will keep the FDA approvals in place for now. This averted a catastrophic disruption in access to abortion, given that more than half of U.S. abortions are done via use of mifepristone and a second medication.
The larger problem with this case is that it should never have been heard in the first place. The plaintiffs have manufactured a case and their standing claims don’t hold up. As the FDA and drug company pointed out in many of their legal briefs, the doctors who sued have not suffered any injury and cannot demonstrate that they will suffer any future injury.
As one brief put it:
Plaintiffs assert they have standing because some plaintiff-physician or plaintiff-association member doctor might be asked to treat an unidentified patient in some emergency room on some unknown future date for a rare complication stemming from a drug some other provider prescribed, which is the standard of care for a medical practice no plaintiff-physician performs. That daisy-chain of speculation alleges nowhere close to a “substantial risk” of “certainly impending” harm.
As we await a final determination from the 5th Circuit on the case, don’t hold your breath for a sensible outcome. Continuing the larger trend, it appears that the judges, intent on furthering a Christian nationalist agenda, will ignore the major standing problems in this case and instead buy into the manufactured theories of Alliance Defending Freedom. This case appears destined for the Supreme Court, which, ultimately, will have to ask itself: Do the court’s jurisdiction rules apply to religious litigants or only to everyone else?